Decision not about birth control

Published 3:56 pm, Thursday, July 31, 2014

The recent decision of the U.S. Supreme Court in Hobby Lobby vs. Burwell has been the subject of heated and misleading claims by those on the losing side of the court's 5-4 decision.

Contrary to opponents' mischaracterization, Hobby Lobby is not about a "right" to birth control; instead, the case considered whether the government can force employers to violate their religious beliefs and impose enormous financial penalties when they don't comply.

Nothing in the decision takes away a woman's right to birth control. Rather, the Hobby Lobby decision is quite limited in scope and will likely affect very few employees of closely held corporations asserting religious objections to the regulation.

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John J. Faso is former minority leader of the state Assembly and was Republican candidate for governor in 2006.

The decision, based primarily on the court's interpretation of the 1993 Religious Freedom Restoration Act, held that privately owned corporations could assert religious objections to the contraception mandates under the Affordable Care Act. RFRA was enacted on near unanimous votes, in a Congress controlled by Democrats, and signed into law by President Clinton.

The ACA mandated that various preventive health services be provided to consumers without charge. To implement this mandate, the federal government issued regulations requiring employers to cover 20 methods of FDA-approved contraception.

Hobby Lobby and two other closely held, family-owned corporations objected to four of the contraceptive methods, including the so-called "morning after pill," on the grounds that such methods terminated pregnancy after fertilization. The companies did not object to the 16 other federally approved birth control methods that are the most commonly used forms of contraception.

Indeed, the companies already provided generous health insurance benefits to their employees that covered most forms of contraception.

There is no doubt that the companies operated in a way consistent with their sincerely held religious beliefs. Hobby Lobby, for instance, is closed on Sundays and donates 10 percent of its earnings to charity. Company owners believe abortion to be a moral wrong and that they should not be forced to pay for methods of contraception -— such as the morning after pill — that they classify as a form of abortion.

Under RFRA, the government has the burden of showing that its mandates don't impose a substantial burden on the free exercise of religion. In addition, the government has an obligation to use the least restrictive means of furthering its governmental purpose, in this instance the wide availability of contraceptive services.

The court held that the government violated RFRA and found that reasonable alternatives could be employed without unduly burdening the religious beliefs of these family businesses.

Some argue that for-profit businesses have no religious liberties to assert. Such objections have little merit.

While it is hard to see this controversy ever impacting employees of publicly traded companies, family businesses like Hobby Lobby frequently base their business practices on their sincerely held religious beliefs. They should not be forced to choose between violating those beliefs or crippling financial penalties running into tens of millions of dollars, especially when the government has more reasonable alternatives to achieve its objectives.

Hobby Lobby and countless other businesses are merely a reflection of the people who own the enterprise. Their rights to religious freedom and other protections of the Bill of Rights don't evaporate just because they operate in corporate form.

For instance, would opponents argue that corporations shouldn't be protected by the Fourth Amendment against unreasonable searches of their premises?

Besides the disingenuous rhetoric of Hobby Lobby opponents, there is also lurking an outrageous libel that the five members of the Supreme Court majority were influenced by the fact that they are all Roman Catholics. Our Founders explicitly required that there be no religious test to holding public office. To argue or infer that the court majority based its opinion on the members' religious faith is contrary to the facts of the case and unbecoming of those who make such an argument.

Lastly, Hobby Lobby reveals an increasingly dangerous impulse of many voices on the "progressive" political left. They are no longer satisfied with making their arguments and letting the democratic process determine the often complex social and economic issues facing America.

Instead, they insist on a doctrinaire adherence to their beliefs and the use of governmental power to force others to capitulate. Such approaches undermine our pluralistic society and present a grave threat to individual and religious liberties in the United States.